IN THE MATTER OF AN ARBITRATION

Between : CANADIAN NATIONAL RAILWAY COMPANY,

and: CANADIAN TELECOMUNICATIONS DIVISION OF THE CANADIAN BROTHERHOOD OF RAILWAY, TRANSPORT AND GENERAL WORKERS

AND IN THE MATTEER OF D.W. ALLEN VIOLATION OF THE DISCIPLINE PROVISIONS OF THE COLLECTIVE AGREEMENT.

BORD OF ARBITRATION: Kevin M. Burkett, Chairman S.E. Dinsdale, q.c.,Company Nominee Wm. Walsh, Union Nominee

APPEARANCES FOR THE COMPANY J.W. Healy,q.c.,Counsel and others.

APPEARANCES FOR THE UNION : C.Trower,Counsel D.W. Allen Grievor

 

A hearing was held in this matter in Toronto on July 7, 1978

AWARD

1. The grievance before the board was filed on August 1, 1977 under the terms of a subsisting collective agreement between the parties. The grievance was filed in response to the termination of Mr. D.W. Allen a plant technician at witehorse, Yukon Territories, on July 26, 1977. Mr. Allen received the following notice of termination which was hand delivered by Mr. D.L. Bohmer, the area plant supervisor.

Following notice received from R.J. Wells, Regional Manager ,Edmonton,Alberta, July 26th, 1977-10.42 am:

Quote

This is to advise you are discharge from company service effective 1500 hours ,July 25th,1977, for unauthorized re-connection of telephone service to your residence on or about July 20th,July 21th and July25th.

You are hereby given thirty days notice to vacate the company residence you now occupy. Your final pay cheque will reflect the deductions made for outstanding accounts owed to CNT. Any company possessions you now have are to be returned to CNT immediately.

Unquote

( sgd ) R.J. Wells

Regional manager

Edmonton,Alberta

The grievance alleges that the company violated article 21, Part 1, clause 1 and clause 2 and in so doing did not lay the proper foundation for the disciplinne was UNJUST on a consideration of the merits and the union advised the Board that it was relying on the alleged breach of Article 21 and would not be adducing evidence going to the merits of the companyís action vis-a-vis the alleged misconduct of Mr. Allen. Neither party challenge the juridiction of the board to hear and determine the matter which has been submitted to it.

2. Mr.Allen received the following interview notice:

Department place and date:Telecommunication, Whitehorse,Yukon. July 21, 1977

Subject: Interview - Telephone Disconnect

Please arrange to be at my office at 10:30 A.M., Monday July 25th,1977 for the purpose of an interview into the unautorized re-connection of telephone 688-2626

(sgd) D.L. Bohmer

Area Plant Supervisor

Whitehorse, Yukon

cc: J.J. Oxley, Employee Relations Supervisor, Edmonton.

There is a dispute as to when Mr. Allen received the above interview notice.Mr. Allen testified that he first saw the notice on July 24th at about 3:00 P.M. when he retrieved it from a mail slot at a CN depot. Mr. Bohmer, the area plant supervisor, testified that he dictated and signed the notice on july 21st and arranged for his secretary to hand deliver it that same day. Mr. Bohmerís secretary was not present at the hearing which was held in Toronto. The company asked that the hearing be reconvened at a later date for the purpose of allowing it to call Mr. Bohmerís secretary if the timing of Mr. Allenís receipt of the interview notice become a fact necessary to a determination in thi matter. The company argued that it was caught by surprise because Mr, allen had acknoledged at the interview on july 25th that he had been properly notified and further, because the issued had never been raised during the grievance procedure. The board agreed with the company and ruled that should the timing of Mr. Allenís receipt of the interview notice be necessary to a determination in this matter it would reconvene the hearing for the purpose of allowing the company to call Mr. Bohmerís secretary.

3.The interview referred to in the notice dated july 21st took place at 10:30 a.m. on july 25th 1977.Merrs. Allen and Bohmer were in attendance and addition Mr. Bohmerís secretary was present for the purpose of transcribing the interview. Her record of the statements made at the interview is acknowledged as accurate by both Mr.Bohmer and Mr. Allen. The minutes of the interview were telexed to Mr. A.J. Kuhr, General Manager,C.N. Telecomunications,Toronto, immediately following the interview and Mr. R.J. Wells, Regional Manager, Edmonton was advised by telephone of the contents of the minutes. A copy of these minutes was also forwarded to the trade union. The minutes of the interview, as recorded by Mr. Bohmerís secretary are set-out below:

" This interview is being held to determine your responsability or otherwise into the unauthorized re-connection of telephone 688-2626, between the dates July 14th to July 25th, 1977 inclusive.

Allen interjected at this point as follows:

Quote

ALLEN:"this interview is not going to take very long. Don, your biased and you know God damn well I did reconnect my phone. I needed it and I sent accounts in Edmonton and R.J. Wells a message stating what I wanted to do about it."

Unquote

Interview continued

QUESTION: Have you been properly notified of this interview.

ANSWER: Yes

D. Allen again interjected:

QUOTE

"Don, you are biased against me and I will not make any comments until Roland Boone, Union Rep. can be here."

UNQUOTE

Interview continued

QUESTION: Do you wish to have a fellow employee here with you?

ENSWER: Only man would be Roland Moone and I wonít say anything until Booneís here.

QUESTION: Would you please give me a statement concerning this matter?

ENSWER: Wonít say anything until Booneís here.

At this point Allen walked out of the interview"

4. Following the aborted interview Mr. Allen was suspended from service on July 25th by notice of that date wish was hand delivered by Mr. Bohmer. He received the termination letter signed by Mr. Wells, wish has been reproducedin para. I herein, the following day. There was no dialogue between Mr. Allen and the company in respect of his case from the time he walked out of the interview on July 25th until the time he received the notice of termination on July 26th, 1977.

5. The relevant sections of the collective agreement are:

"ARTICLE 21

Discipline and Grievances

Part 1 - Discipline

Clause 1 :

An employee in a technical classification having six (6) mounths or more continuous service in the Company or an employee in a non-technical classification having ninety (90) days or more seniority will not be disciplined or discharged until his case has been thoroughly reviewed by the proper officers of the Company. Such review will be completed as quickly as possible.

Clause 2:

An employee may be held out of service in the event of a dismissible offence for a period not exceeding three (3) daypending a review of his case. He will be given at least one (1) dayís notice if required to make any statement and will be advised of the reasons of such review. An employee may, if he so desires, have the assitance of one or two fellow employees (who may be members of the Union Grievance Commitee) when making a statement. On request, he will be furnished with a copy of such statement and with is consent a copy will also be furnished the district chairman."

6. The Union argues that clause 1 and 2 of part 1 of Article 21 of the instant collective agreement are mandatory provisions which confer a number of substantive rights. The Union takes the position that if these rights are not extended to an employee who is subsequently disciplined the effect is to void the discipline. Theunion catalogued these rights as firstly, the right to a "thorough review" of an employeeís case by proper officials of the company prior to the imposition of discipline, secondly, the right to one dayís notice in the event the employee is required to make a statement, therdly, the right to be advised of the reason for the review and fourthly, the right to the assistance of one or two fellow employees when making statement. The Union cited a number of cases in support of the proposition that these rights are substantive and are a necessary prerequisite to the imposition of discipline.

7. Counsel for the company distinguished the cases refered to by the Union. He argued that the instant agreement does not require " afair and impartial hearing " nor does it contain an investigation procedure.While admitting that clause 1 of article 21 - part 1 has a mandatory flavour, he argued that the facts show that Mr. Allenís case was accorded a thorough review by the proper company officials. He characterized clause 2 as directory and not mandatory and argued that in any event a statement was not required of Mr. Allen nor was one made. The company asks the Board to find that a proper foundation for the imposition of discipline was laid in accord with Article 21 and to dismiss the grievance.

8. There are a series of cases which hold that clauses similar to Article 21, Part 1, clause1 and 2 in the instant agreement a mandatory right of a substantive nature which, if not complied with, voids the subsequent imposition of discipline. In cip containers Ltd. and International chemical workers, Local 229 [1973] 2 L.A.C. (2d) 308 the arbitrator reviewed the autorities and ruled that the failure of the company to state the cause of the discharge in in writing or to provide a fair and impartial hearing " prior to the imposition of discharge" as riquired by the collective agreement rendered "the disciplinary action taken against the grievor to be ad initio. " In setting out his reasons the arbitrator in the C.I.P case (supra) referred to Budd Automotive Co. and U.A.W. Local 1551 (February 1972) reported in labour Arbitration News, April 1972, Wherein the failure of the companyto comply with the procedure set out in the following clauses gave rise to a claim by the union that the discipline was void. The relevant clauses in that case are set below:

7.01 Any employee who is to receive awritten warning, suspensionor discharge shall be removed from his work station and taken to an office. He may,if he so desires, request and obtain the presence of his steward to represent him during such an interview.During such interview, the employee will be advised of the offense committed.

7.02 Following a full investigation of the details a supervisor will advise the employee and the steward of the penalty to be imposed at the conclusion of the shift following the one on which the offens occured."

The arbitrator in upholding the unionís position reasoned as follows:

"I find these provisions to be completely independent of what may follow in the grievance procedure resulting from the initial action of the company,or the basic right of an employee. He has been given by the parties the right to receive the charge against him in the privacy of an office , the right to know the penality within the time stipulated in 7.02 and the right to representation.These are substantive right which must be accorded to the employee if the right of the company to initiate discipline is to be given weight. The faillure, then,to allow these right to the employee is not a faillure to follw procedure... these are obligations which cannot be ignored by the company in the opposition of discipline. In my view the parties have balanced the basic rights of the company and the employee for the purpose of discipline by which the exercise of the companyís right.It is not a matter going solely to the assessment of the penalty but goes to the very acts of discipline itself... In conclusion, I find that Articles 7.01 and7.02 are not procedural in effect and provide substantive rights to the employees which cannot be denied them by the company and must be strictly applied. In the event of the companyís failure to grant such right to the employee involved and to carry out the terms of these provisions, I find that the imposition of discipline would be void ab initio ..."

(Emphasis added)

This Board subscribes to the reasoning and the conclusion set out above. See also re Valade v. Eberlee [1972]1 O.R. 682, Mirador Motor Hotel, Club, Restorant,Tavern Employees, Local Union 261 [1973] 2 L.A.C. (2d) 339 (Abbot),Dundas Professional Fire fighters Association and Corporation of the town of Dundas (September 9, 1975) unreported,(OíShea) and Canadian Pacific Limited and Canadian Telecommunications Union Division I , reported Levgold Current Labour Developments,February 1976 (Beck). These cases stand for the proposition that the failure of an employer to follow a procedure designed to confer sobtantive rights upon an employee about tobe disciplined nullifies the discipline which follows.

9. In re Loblaws Groceterias and Canadian Retail Employees [1973] 3 L.A.C. (2d) 325 (Adams), a mumber of the cases cited above were reviewed. The arbitrator concluded from these cases that the failure of the parties to provide for the consequences of non-compliance with a procedural requirement does not automatically make the provision directory . He stated at page 334:

"It would therefore appear,from the preceding cases that the faillure to provide for the consequences of non-compliance does not automatically mean that a provision is directory. One must go on to consider the basic importance of the provision in light of its purpose and the importance of that purpose in the relationship of the individuals involved."

In the Lablaws case (supra) the arbitrator concluded that the requierement to supply the employee with a written notice containing the reason for the disciplineary action within 7 days of the incident giving rise thereto could not be considered mandatory vis-a-vis the proper foundation for discipline, when the employee was required to grieve within 5 days from the date of his dismissal. The arbitrator characterized the purpose of the written notice in that case as one of preserving the issued for the grievance procedure and arbitration hearing and distinguishes it from the importance assigned to the provisions dealt with in the cases which he had reviewed.

10. Applying the test enunciatedin the Loblawís case (supra) and having regard to the jurisprudence reviewed in para 8 herein, the Board is of the view that clauses 1 and 2 of part 1 of Article 21 "discipline" (which is separate and distinct from part 2 Article21 "grievances") are mandatory provisions which confer a number of substantive rights upon employees who are to be the subject of discipline. Clause 1 stipulates that an employee in a technical classification having more than 6 mounthsí service will not be disciplined or discharged until his case has been "thoroughly reviewed " by the proper officers of the company. Mr. Allen is employed in a technical classification and had more than 6 mounthsí countinuous service with the company at the time of his termination. Mr. Allen, therefore, was entitled under this clause to a "thourough review" of his case before he was terminated.Under clause 2 of Article 21 Part 1 he was entitled to one dayís notice if required to make a statement and he was entitled to be advised of the reasons for the review and,if he desired, he was entitled to the assistance of one or two fellow employees (who may be members of the unionís grievence committee) when making a statement. Although an employeeís right to notice is conditional upon a statement being required and is right to assistance is conditional upon an expressed desire for assistance, the Board is of the view that if the respective conditions are met the clause must be complied with and the right which flow are substantive. The Board reject the argument of the company that clause 2 is merely directory.

11. The Board must decide if the company conducted a "thorough review" of Mr. Allenís case. The issuemust be decided as a question of fact. the adjective "thorough" which the parties have used in clause 1 to describe the nature of the review which is required carries the connotation of completeness. It has been defined in Websterís New Collegiate Dictionary (1975) as meaning "(1) carried through to completion;exhaustive,(2) (a) marked by full detail painstating, (c) complete in all respects."The nature and extent of a "thorough review" will, in many cases, be dictated by the facts of the particular case. The Board is of the view, however, that a "thorough review" of a discharge case requires as a minimum that the company confront the employee whose employement is in jeopardy and request of him a statement in respect of his alleged misconduct. The company would appear to his alleged misconduct. The company vwould appear to have recognized this requirement in the case before us as is evidenced by Mr. Bohmerís request of Mr. Allen that he make a statement.

12. The evidence establishes that Mr. Allen made it clear to Mr. Bohmer that he disired the assistance of Mr. Boone , the union steward . The interview was not adjourned to allow Mr. Boone to attend but rather , Mr. Allen was asked to make a statement . It was at this point that Mr. Allen walked out . It is clear from the record that Mr. Allen did not refuse to make a statement but that he requested assistance as is his right under clause 2 Part 1 of Article 21 . Having regard to the fact that the interview notice did not specify that a statement would be taken , the company should have allowed Mr. Allen to obtain the assistance when he requested and then make the statement which was requested of him . Intead the company proceded to terminate Mr. Allen without the benefit of his statement . In the face of the companyís decision to terminate Mr. Allen without the benefit of a statement from him concerning the alleged misconduct and the circumstances surrounding his impugned activities , the Board must find that the company failed to give his case a "thorough review" in accord with clause 1 of Part 1 of Article 21 . The result of this failure is to render the discipline which followed Void abinitio.

13 . Mr. Kuhrís letter to the union dated September 12 , 1977 makes reference to the decision of the company to accept a "supplementary statement " from Mr. Allen in respect of his alleged misconduct . The company argued that this being the case , Mr. Allen who did not come forward with a supplementary statement , was not prejudiced . The companyís argument misses the point. The "thorough review" must precede the imposition of the discipline. The parties, by expressly requiring that the review be made before the discipline is imposed , have implicitly recognized in their agreement that the proper company officials, especially those not directly involved in the incident or incidents which may give rise to the discipline , are likely to be less commetted to a particular course of action before the imposition of discipline than they would be after discipline has been imposed. In so far as a statement was not taken from the grievor prior to the imposition of discipline he has been prejudiced to the extent that the company officials who would now consider a "supplementary statement" have commited themselves to a particular course of action. One can only speculate at this point as to what might have been the outcome of Mr. Allenís case had he been permitted assistance of Mr. Boone in making the statement requested of him and had the company considered his statement as a part of its "thorough review" of his case .

14. The Board has found the discipline imposed on Mr. Allen to be void ab initio. Accordingly , the Board hereby direct that Mr. D.W. Allen be reinstated into his former employment without loss of seniority and with compensation for lost wages . The Board will remain seized of this matter in the event the parties are unable to agree on the amount of compensation which is owed the grievor.

Dated at Toronto , Ontario this 18th day of August ,1978.

Kevin M. Burkett

Chairman

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN NATIONAL RAILWAY COMPANY,

AND

CANADIAN TELECOMMUNICATIONS DIVISION OF THE CANADIAN BROTHERHOOD OF RAILWAY, TRANSPORT AND GENERAL WORKERS

AND IN THE MATTER OF THE GRIEVANCE OF d.w. aLLEN - VIOLATION OF THE DISCIPLINE PROVISIONS OF THE COLLECTIVE AGREEMENT

DISSENT OF s.e. dINSDALE, q.c., COMPANY NOMINEE

I have received the award of the award of the majority but regret that I cannot agree with the disposition of the grievance.

The grievor was discharged on July 25, 1977 as a result of the unauthorized re-connection of telephone service to his residence . It was the unionís contention that the procedure for discipline set out in the collective agreement had not been followed and that consequently the grievorís discharge was void ab initio. The Board considered clause 1 and 2 of Part 1 of article 21 and heard argument as to whether the clauses in question were mandatory or directory .

The majority found that the company had failed to thoroughly review the grievorís case and that consequently the grievorís discharge was void ab initio. Ifind this conclusion difficult to accept considering the fact that the grievor, even before the Board , did not deny that he re-connected his telepnone service. Indeed counsel for the Union informed the Board that there was no challenge to the grievance on its merits and relied solely on the technical defence.

The key portion of clause 1 of Part 1 of Article 21 is the requirement that an employee "will not be disciplined or discharged until his case has been thotoughly reviewed by the proper officers of the company ". The grievor having more than six mounts service in a technical classificationd , it is clear that this clause applies . In this case , Mr. Wells , the Regional Manager , made the decision to discharge the grievor and there was no suggestion that he is not a proper officer of the company . The question that remains to be determined is whether Mr. Wells "thoroughly reviewed" Mr. Allenís case before he made the decision to discharge the grievor . In my oppinion , the phrase thoroughly reviewed requires that the proper officer must make an informed decision based on the available facts.

There can be no doubt that Mr. Weels aware of the facts concerning the grievorís acts . Mr. Bohmer , the Area Plant Supervisor , tstified that he had briefed Mr.Wells as to the circomstances involved in the grievorís case prior to the interview which took place . After the interview , Mr. Bohmer phoned Mr. Wells and read the minutes to him . Mr. Wells advised Mr. Bohmer to suspend the grievor pending a decision from Headquarters . Mr. bohmer then telexed a copy of the minutes of the interview to Mr. Kuhr , the General Manager , and to Mr. Wells . The following day , Mr.Wells formally notified the grievor of his discharge . In addition to these facts and , according to the minutes of the interview, the grievor himself after stating that he did re-connect his phone went on to add that he sent accounts and Mr. weels a message stating what he wanted to do about it . Based on this evidence, I find that Mr. Wells was completely familiar with the facts involved in the grievorís case and that the grievorís case was "thoroughly reviewed" before a decision was made.

The majorityísview was that the issue of whether there has been a thorough review is a question of fact. The majority however went on to find in effect that a thorough review requires the company to "confront"the employee and request a statement . I cannot agree that the phrase "throrough reviewed" in itself means that these are requirement which must be carried out . In my opinion , a Board of arbitration should be extremely reluctant to read in any requirements to a collective agreement ; particularly when dealing whith a clause of a mandatory nature . The Agreement in question contains the usual prohibition against a Board of Arbitration changing , adding to varying or disregarding any provision of the agreement . I think it should also be taken into account thathad the parties wished a hearing be necessary , they could have easily so provided . I note in Canadian National Railway Company and Canadian Brotherhood of Transport and General Workers - Knitch grievence (weatherill) the Board refuse to find that the Collective Agreement required that the company officers with whose statements the grievor was necessarily be available for cross-examination .

The thrust of the Unionís objection was directed to clause 2 of part 1 of article 21 . Counsel maintained that the notice of the interview was defective since the grievor did not receive one dayís notice and secondly , that the notice didnot state that the grievor would be riquired to make a statement or that discipline was possible.

The objections raised are clearly of a most technical nature . Ifind no merit in the suggestion that the notice was defective because the grievor was not advised that he would be required to make a statement or similary that the notice was defective because it did not mention that discipline was posible. The notice on its face list its object as "interview-telephone disconnect". The details spell out that Mr. Allen was to attend "for the purpose of an interview into the unauthorized re-connection of telephone 688-2626" (the grievorís telephone number) . The grievor himself admitted he understood what the interview was about . In reply to Mr. Healy , the grievor indicated that he knew there was a real possibility of trouble .

As far as the issue of when the grievor received the notice is concerned , this matter was raised for the first time at the hearing . The board ruled that it would permit thee company to call Mr. Bohmerís secretary if anything turned on this issue . Assuming for the moment that the grievor did receive the notice at 3:000 p.m. on Sunday , I consider that notification on Sunday of a meeting on Monday satisfies the requirement of one dayís notice . I note that at the interview the grievor acknoledged that he had been properly notified .

In my opinion , the pricipal determination to be made is whether clause 2 is mandatory or directory . There are , of course , a good many cases , some of which were refered to us by counsel , in which procedural clauses have been held to be mandatory or directory . Over the Years , a number of tests have surfaced ; however , as case law indicates , there is no one set formula . In this instance , there are clearely permissive aspects to clause 2 . Mr. Trower admitted that clause 2 had a discretionary flavor , but contended that the mandatory nature of clause 1 "spilled over" into clause 2 . Counsel further contended that the permissive aspect of clause 2 only applied to the employee. I cannot agree with this latter suggestion . The first sentence of clause 2 which provides that an employee may be held out of service pending a review is clearly permissive and reading the clause in context is clearly a "right" which may be exercised by the company . If the grievor was not held out of service ,it could hardly be contended that his discharge was void ab initio .

Clause 2 is of course only one component of part 1 of article 21 . Reading part 1 of article 21 as a whole , it is apparent that the parties have agreed upon a set procedure which is to be followed in discipline cases . I cannot agree however that clause 2 is so fundamental to the process that if it is not followed any discipline is rendered null and void and accordingly , I find that the requirements of clause 2 are directory rather then mandatory . In coming to this conclusion , I have considered whether there has been substantial compliance with clause 2 and the degree of prejudice to the grievor which has resulted from any non-complaiance .

In this instance , the grievor received notice of the interview and was well aware of the reason for such interview . The grievor made no attampt to contact Mr. Boone or any other employee and only requested the presence of Mr. Boone after the interview actuallycommenced . In my view , the most sensible result of non-compliance with clause 2 is that if a statement was given in the absence of two employeed and the employee in question desired their assistance , perhaps the company could not hold him to the statement . This being discharged case , the onus is on the company to adduce evidence at the hearing as well as to show just cause . This is the type of reasoning taken into account by the board in the Knitsh case .

The fact is in this case there were a number of remarks made by the grievor before before he was even askend to make a statement . These remarks were more in the nature of unsolicited outbursts and cannot be characterized as statements within the meaning of clause 2 . However , even if they were so characterized , wath prejudice has resulted to the grievor ? The company wrote to the grievor on august 3 , 1977 , offering the grievor the opportunity to file a supplementary statement . The grievor declined to do so .

Again , it should be taken into account that the facts upon which the discharge is based are not in dispute and there is no challange to the discharge on its merits .

In summary , I find that the company was fully aware of the facts involved in the grievorís case and that accordingly , the requirement of a thorough review set uot in clause 1 has been satisfied . In addition , I consider that there has been substancial compliance with clause 2 . The grievor received adequate notice of the july 25th interview and any remarks made by the grievor cannot be considered as statements within the meaning of clause 2 . Certainly , considering the grievor was subsequently offered the opportunity of making a statement and declined to do so , I fail to see how the grievor was prejudiced . Finally , it should be noted that the grievor has admitted that he did re-connected his telephone service and relies solely on the technical defence . To rescind the discharge on this basis would in my opinion be inequitable . For these reason , I would find that the procedural objection is without merit and would dismiss the grievance .

Dated at Toronto , Ontario this 18th day of August , 1978

(sgd.)S.E. Dinsdale

Company nominee